Criminal Law Flashcards
Specific intent crimes
Crim. act must be consciously performed for particular purpose (FIAT)
- First-degree murder;
- Inchoate offenses (attempt, solicitation, conspiracy);
- Assault with intent to commit a battery; and
- Theft offenses (larceny, larceny by trick, false pretenses, embezzlement, forgery, burglary, robbery).
General intent crimes
Crim. act must be consciously performed
- False imprisonment
- Rape
- Manslaughter
Strict liability crimes
Criminal act must be performed
- Statutory rape
- bigamy
- Regulatory offenses for public welfare
- Regulation of food, drugs, firearms
- Selling liquor to minors
Malice crimes
Reckless disregard of a high risk of harm
- Common-law murder
- Arson
Assault
- Attempt to commit battery OR
- intent to place another in reasonable apprehension of imminent injury
*aggravated if weapon used
Battery
Intentional or reckless causing of bodily injury or offensive touching to another
Kidnapping
- Unlawful confinement of another
- Involving movement or concealment in a secret place
*Aggravated if for ransom, to commit another crime, or children taken
Rape
Modernly
- Unlawful sexual intercourse
- with anyone
- without their consent
Homicide approach
(1) Start with CL murder rule statement
(2) Malice
- Intent to kill
- Intent to commit serious bodily injury
- Unintentional reckless indifference (depraved heart)
- FMR (look at steps for FMR flashcard)
(3) First-degree murder
- Premeditation
- Deliberation
- FMR (you can say see above)
(4) Second degree murder
(5) Voluntary manslaughter
(6) Involuntary manslaughter
(7) Defenses
Common law murder rule statement
Common Law Murder is the unlawful killing of a human being committed with malice aforethought. Malice aforethought will be found if the killing is committed with any of the following mental states
Malice aforethought for CL murder
- Intent to kill (D’s conduct must have been A and P cause of V’s death and D must have intended to kill V)
- Intent to commit serious bodily injury (D must only possess intent to inflict great bodily injury)
- Unintentional reckless indifference (depraved heart) (D must demonstrate reckless indifference to an unjustifiably high risk to human life).
- Felony murder rule (intent to commit dangerous felony)
FMR analysis
(1) Determine if facts present a killing that occurs during commission of an inherently dangerous felony (BurglaryArsonRapeRobberyKidnapping)
(2) State the rule: Under the FMR, D can be found guilty for a foreseeable killing that is proximately caused by or during the commission or attempted commission of an inherently dangerous felony.
(3) State the felony (“here D is guilty of underlying felony of X)
(4) Discuss elements of felony and analyze how each is met
(5) Analyze whether killing of V was foreseeable (foreseeable that someone might die if one brings gun)
(6) Show that V’s killing was proximately caused by inherently dangerous felony because of pertinent facts
(7) Limitations on FMR (only discuss if applicable
Limitations on FMR
*Death of a bystander:
- Majority rule (CA): D not liable for 3P death caused by V or police officer.
- Minority rule: D liable for any foreseeable 3P death caused by commission of or attempt to commit a felony
*Death of a co-felon: Under the Redline doctrine, D is generally not guilty of felony murder when V or a police officer, acting in self-defense or trying to prevent the escape of D or his co-felon, kills the co-felon.
*Point of safety: if the killing occurs after the commission of the felony is complete and the defendant has reached a place of safety, FMR will not apply.
Merger doctrine and FMR
Under merger doctrine, underlying felony will merge into felony murder for purposes of DJ Clause. But for q’s that ask what crimes may someone be charged of (not convicted of) render merger doctrine inapplicable.
Intent can
transfer for murder (like in torts)
Fleeing felon rule
Police officer can use deadly force against a fleeing felon if:
- Use of force is necessary to prevent the felon’s escape;
- Felon has threatened officer with a weapon or officer has probable cause that felon has committed a serious crime;
- Officer gives felon some warning of the imminent use of deadly force, if feasible;
- Officer’s intent will be judged objectively through a reasonable person standard.
First degree murder analysis
First-degree murder (statutory murder) can arise in two ways, depending on the jx:
(1) Premeditation and deliberation: when the killing was premeditated and deliberate—D had time to reflect on the killing (even a mere second is sufficient) and acted in a cool and dispassionate manner.
(2) Enumerated inherently dangerous felony: FMR analysis for Common Law is the same as FMR. You can say “see above for the FMR analysis.”
Second degree murder analysis
Second-degree murder (also statutory murder) is the statutory version of common law murder (see above).
- If murder does not rise to the level of first-degree murder and is not reduced to manslaughter, D will be guilty of second degree murder.
- Exam tip: Since second degree murder is the statutory version of common law murder, you can just say “Second degree murder is the statutory version of common-law murder, including the FMR. See the common law murder analysis above.”
Voluntary manslaughter analysis
In order for D to be found guilty of the lesser offense of voluntary manslaughter, there are four elements:
(1) Adequate provocation that would arouse a sudden/intense passion in the mind of an ordinary (reasonable) person;
- NOTE: words alone are NOT adequate provocation.
(2) D must have actually been provoked;
(3) There must not have been sufficient time for an ordinary (reasonable) person to cool off
(4) D did not actually cool off.
Imperfect self-defense
If D’s use of deadly force was inappropriate, but D believed such force was appropriate (honest but unreasonable) imperfect self-defense might mitigate a murder charge down to voluntary manslaughter.
VM exam tip
VM can be easy to miss. A question may ask if D is guilty of first- and second-degree murder then raise facts involving provocation and time to cool. In that case, bring up voluntary manslaughter even though the question has not asked you to do so.
Involuntary manslaughter analysis
Involuntary manslaughter can arise in two ways:
(1) when it’s an unintentional killing committed with criminal negligence. Criminal negligence = substantial failure to exercise reasonable care.
(2) Misdemeanor manslaughter: when D commits a misdemeanor and a death accidentally occurs during its commission or for felonies that don’t rise to the level of murder under the FMR.
Murder exam tips
There are two types of homicide questions:
(1) Broad question: “Can Defendant be convicted of murder or of any lesser included offense?”
- Begin with Common Law Murder, then discuss First Degree Murder, Second Degree Murder, then (if applicable) Voluntary and Involuntary Manslaughter.
(2) Specific question: “Can Defendant be convicted of First Degree, Second Degree Murder, and Voluntary Manslaughter?”
- Discuss the issues in the specified order. Second degree murder is the statutory version of common law murder.
Larceny
- Trespassory (i.e., without consent)
- Taking and carrying away (can be met by the slightest movement)
- Of another’s personal property
- With the specific intent (must be present at time of taking)
- To permanently deprive the owner of that property.
Larceny by trick
Occurs when D tricks the other party and obtains POSSESSION through fraud or deceit.
*Larceny by trick requires that the defendant fraudulently induce the victim to deliver possession of, but not title to, the property to the defendant.
Embezzlement
- Fraudulent conversion (i.e., substantial interference with owner’s right to property)
- Of another’s property
- By a person who is in LAWFUL possession of the property.
*E.g., O’s car breaks down. O entrusted the car to M, a mechanic, for repair. M fixes the car, then sells it to T. M has committed embezzlement.
*Exam tip: For embezzlement, the embezzler always has lawful possession, whereas for larceny, the person taking the property does not have lawful possession.
False pretenses
Occurs when D
- Knowingly makes a false representation
- Of a past or present material fact
- Which causes the person to whom it was made
- Convey title to the misrepresenter
- Who intends to defraud.
*Exam tip: if V is tricked into giving up possession, it could be larceny (by trick) as opposed to false pretenses because no title has passed, so key is to see if title passes.
Robbery
- A larceny
- By force or intimidation (threat to harm property not sufficient, must be towards victim)
- When taking the property is from the victim or in his presence.
Extortion
Threat of future harm to deprive an owner of his property.
Theft
Theft is the illegal taking of another person’s property
Burglary
- Unlawful breaking and entering (i.e., without owner’s permission)
- of the dwelling of another
- at nighttime
- with the specific intent to commit a felony therein.
*Must name and discuss felony D intended to commit when D entered dwelling.
*Even if D fails to complete underlying felony, D is still guilty of burglary and may be guilty of an attempted felony
Receipt of stolen property
- Receipt or control of stolen property;
- With the knowledge that the property was wrongfully taken;
- With the intent to permanently deprive the owner of the property
**Note: If you see a fact pattern with an accessory after the fact, look for receipt of stolen property.
Arson
Malicious burning of a dwelling (of another or self) (can be through an indirect act like driving into a gas station causing it to explode).
**A burning is malicious if it is done with reckless indifference to the risk of the structure burning down
**structure must actually be damaged
**dwelling has been expanded to any building
Solicitation
Occurs when a person
- Entices, encourages, or asks another person;
- To commit a crime;
- With the intent that this other person does commit that crime.
*BE SURE TO NOTE that solicitation merges into the completed crime
Conspiracy common law rule (apply on exam)
- An agreement;
- Between two or more people;
- To accomplish a crime;
- With specific intent to commit the crime.
- Majority/MPC: There must also be an overt act in furtherance of the conspiracy.
- Unilateral approach under MPC: A unilateral conspiracy can be formed if there is only ONE party that agrees to accomplish an unlawful purpose.
*Two main elements for majority/MPC (remember for withdrawal): (1) agreement made, (2) overt act. Once both are satisfied, conspiracy has been formed.
Conspiracy takeaways
- The doctrine of merger does NOT apply to conspiracy. D can be convicted of conspiracy to commit a crime, the underlying crime, and crimes committed in furtherance of the conspiracy.
- Example of conspiracy: When only one conspirator has the intent to agree and the other “conspirator” is a government agent or someone only pretending to go along with the crime with the intent of telling the police, then there is no actual agreement between two people. Under the common law, there is no conspiracy. Under the MPC (unilateral approach) there is a conspiracy.
- D can be liable for conspiracy to commit robbery, the robbery itself, and any other crimes committed in furtherance of the conspiracy.
- Exam tip for conspiracy:
(1) Discuss whether a conspiracy existed (using above) and if D is liable for the target crime (i.e., the crime parties conspired to commit).
(2) Then discuss whether D is liable for any other crimes. If they occurred in the furtherance of the conspiracy, D is liable.
Liability for crimes of co-conspirators
Conspirators are liable for the crimes of co-conspirators if the crimes were
- committed in furtherance of the objective and
- were reasonably foreseeable.
Defenses to conspiracy: Withdrawal from conspiracy before conspiracy is formed (not liable for conspiracy)
Under majority/MPC, D can withdraw before the conspiracy is formed (i.e., between date of agreement and commission of the overt act that completes the conspiracy). Must communicate notice of his intent not to participate to the other potential co-conspirators OR by informing the police about the agreement.
- but under CL, cannot withdraw once conspiracy is formed (agreement)
- If he does above, not liable for conspiracy bc he has effectively withdrawn.
- However, if he does not withdraw before overt act, the conspiracy is formed, and withdrawal is no longer possible.
Defenses to conspiracy: Withdrawal after over act (still liable for conspiracy but not subsequent substantive crimes)
If D withdraws after the overt act, he may be only liable for the conspiracy but not the substantive crimes committed after. He may withdraw by giving notice to his co-conspirators OR timely advising legal authorities of the existence of the conspiracy even though such an action does not thwart the conspiracy.
*E.g.,On Monday, A and B agree to steal computers from V’s house the following Saturday. On Wednesday, they purchase tools for breaking into V’s house and rent a van to carry the computers. On Friday, B tells A he no longer wants to participate and calls the police to tell them about the plan. B is not liable for any crimes A commits on Saturday night, but B is still liable for conspiracy.
Attempt
- A substantial step toward the commission of a crime AND
- The specific intent to commit the crime.
(*Mere preparation does not count as a substantial step.)
*If the crime is successfully completed, the attempt is merged into the completed crime.
Merger
- Solicitation and attempt merge into the actual crime so they cannot be charged in addition to the actual crime.
- Conspiracy does NOT merge into the actual crime and can be charged IN ADDITION to the actual crime.
Defenses to solicitation, conspiracy and attempt
- Factual impossibility is NOT a defense to above crimes in this section.
- Legal impossibility IS a defense to above crimes in this section. (see below)
Principal
One who commits actual crime
Accomplice
A person is liable as an accomplice if:
- He aids or abets a principal;
- Prior to or during the crime;
- With the intent for a crime to be committed.
*Clearly explain what the accomplice did to aid/abet the principal and explain why the accomplice had intent for the crime to be committed.
Accomplice liability
The accomplice is liable for
- the crime itself (same liability as principal) and -
- other crimes that are foreseeable from the accomplice’s conduct.
*Tip: 1. Discuss whether each crime that occurs is foreseeable. An accomplice is only liable for the natural and probable consequences of the accomplice’s conduct (i.e., foreseeable crimes). If an unforeseeable crime occurs, the accomplice will not be liable under an accomplice liability theory.
Accomplice defenses: Withdrawal
Accomplices can withdraw and limit their liability for subsequent crimes. To withdraw, the accomplice must:
- Repudiate his prior aid;
- Do all that is possible to countermand his prior assistance; and
- Do so before the chain of events is in motion and unstoppable.
*E.g., I lend you my tools. You say, “I need your tools to go break into this building and to open up a safe.” I need to take back the tools and do everything I can to try to retract any help I’ve given you before the chain of events is unstoppable.
Compare accomplice withdrawal with conspiracy withdrawal
- After an effective withdrawal: D is not liable as a co-conspirator for crimes committed IN FURTHERANCE of the conspiracy; but D may still be liable as an accomplice for crimes committed by D’s former co-conspirators.
Accessory before the fact
is an accomplice who aids, abets or encourages the principal but is not present at the time.
Accessory after the fact
One who
- Aids a felon to avoid apprehension after the felony is committed; and
- Knows the felony was committed
Defenses: Self-defense
A person has a right to self-defense against unlawful force but must use reasonable force in response.
*may use deadly force if he reasonably believed deadly force being used against him
Defenses: Imperfect self-defense
Where a person kills in self-defense as a result of an unreasonable belief that he faced deadly force against him, murder charges can be reduced to voluntary manslaughter.
Defenses: defense of others
reasonable force to defend another when one reasonably believes that the other person would be justified in using such force and the force is reasonable.
- Minority rule: “Stands in shoes”: A person may use force to defend another only if the person being defended was himself justified in using force for self-defense.
Defenses: defense of prop
allows a person to use a reasonable amount of force (though NEVER deadly force) to protect his real or personal property.
Defense of insanity (different depending on jx): M’Naghten
D is not guilty if, because of a mental disease causing a defect, D did not know EITHER (i) the nature and quality of the act OR (ii) the wrongfulness of the act.
Irresistible impulse test
D must show that he was unable to control his conduct due to a mental illness.
Durham test
D must show that his conduct was the product of mental illness (but for test, broader than above tests).
Model penal code insanity defense
D must show that he lacked substantial capacity to appreciate the criminality of his conduct OR conform his conduct to the requirements of the law (combines M’Naghten and irresistible impulse tests).
Defenses: Voluntary intoxication
- Applies to most specific intent crimes if it prevents D from forming the required intent (first-degree murder, assault, incomplete crimes, theft crimes)
*Not a defense to crimes involving malice, recklessness, negligence, or strict liability— e.g., common-law murder and arson (malice crimes)
Defenses: Involuntary intoxication
Applies to general and specific intent crimes, and malice crimes
Defenses: Necessity
D reasonably believed that commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime. (e.g., forces of nature like a storm or fire but that’s not required under MPC).
Defenses: Mistake of fact: specific intent crimes
Mistake can unreasonable
Defenses: Mistake of fact: general intent crimes and malice crimes
Mistake must be reasonable (i.e., negates general intent if mistake reasonable)
Defenses: Mistake of law
Mistake or ignorance of the law generally is not a valid defense, even if the mistake is reasonable. (e.g., going above the speed limit)
Defense: Factual impossibility
Arises when D makes a mistake such that it would be factually impossible to complete the crime. This is not usually a valid defense (e.g., you intend to shoot someone, but the gun isn’t loaded; you’re still guilty of attempt).
Defense: Legal impossibility
Arises when D incorrectly believes what he is doing is criminal when it’s not. This IS a valid defense (e.g., you intend to import foreign goods which you thought was illegal but it’s not so no criminal act committed).
Defenses: Entrapment
occurs when a crime is induced by a government official or agent and D was not predisposed to commit a crime already.
Defenses: Duress
If a third party’s unlawful threat causes D to reasonably believe the only way to avoid death or serious bodily injury to D or another is to violate the law, and it causes D to do so, then D can claim duress. D’s fear of harm must be actual, subjective, and reasonable.
*NOTE: Duress is NOT a defense to murder but a D charged with felony murder can assert duress as a defense to the underlying felony and avoid conviction for felony murder.
